Entitled to Fairness: What happens after a sexual assault is reported to a college or university?

Friday

Dec 29, 2017 at 12:01 AMDec 29, 2017 at 8:37 AM

Putting it into practice: What do colleges do when a sexual assault is reported and how could that change?

By Audra Gamble, Erin Dietzer and Sydney SmithSentinel staff

Policies that impact victims of sexual assault on college campuses are in limbo.

In September, Secretary of Education Betsy DeVos announced that guidelines for how universities should handle reports of sexual assault under the federal Title IX law would change.

The move comes six years after President Barack Obama did a radical reworking of the same rules. Now questions about enforcement remain, as an official policy has not yet been revealed by the Department of Education, which DeVos — a Holland native — oversees.

In the meantime, local universities already have in place sexual misconduct policies that detail definitions of what is a violation and how those complaints are investigated.

What makes this process even more confusing is that each university in the U.S. creates its own definitions and policies surrounding how Title IX complaints are handled. These individual policies are not applicable to any other universities, so students must navigate each school’s policies separately.

DeVos has now given schools choices on how they may investigate claims of sexual assault on campus, but that does not mean local universities are jumping at the chance to change their policies. Some have had their established process and policy for years, even before President Barack Obama sent a memorandum to universities in 2011 outlining stricter guidelines.

“Schools have invested a lot into the system they have now — it’s not easy to change policy,” said Rebecca Veidlinger, who owns a firm that conducts Title IX investigations at universities across the country.

Local policies

Schools are required to have a misconduct policy, but these can vary between institutions because there is no definitive rule on what those policies should say — as long as there is a mechanism in place to investigate.

The definitions for sexual misconduct universities must use are outlined in the Clery Act of 1990, named after a young woman who was raped and murdered in 1986 by another student in her college dormitory. The Clery Act requires all colleges and universities that participate in federal financial aid programs to keep and disclose information about crime on and near their respective campuses.

According to the Clery Act, sexual assault is broken down into four categories: rape, fondling, incest and statutory rape (where the victim is younger than the age of consent).

The Clery Act includes oral, anal and genital penetration in its definition of rape, “no matter how slight” the penetration. Fondling is defined as “the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim.”

The Clery Act also requires schools to publish and distribute an Annual Campus Security Report to current and prospective students and employees. The report must provide crime statistics for the prior three years, policy statements regarding various safety and security measures, campus crime prevention program descriptions, and procedures to be followed in the investigation and prosecution of alleged sex offenses.

The reporting process

When a student reports a sexual assault to a university, he or she has a series of options available.

Generally, students are encouraged to contact both the school’s Title IX office and the local police department.

If a student is unwilling to report the assault to police, a university can still take action to accommodate the student’s needs.

Often, even if a student does report an assault to the police, the victim can request immediate changes in housing or class schedule to avoid their alleged perpetrator. These accommodations can take place before any investigation begins.

“A victim of sexual assault, their power and control is taken away from them,” Hope College Title IX Coordinator Sara Dorer said. “Everything we do then in terms of campus response is re-allowing them to gain access and control of power to whatever happens next. We’re different than the criminal justice system, so we can do that.”

Following a report of sexual misconduct, the Title IX coordinator engages in a preliminary investigation to determine if there is reasonable cause to believe the university’s student code of conduct has been violated. Universities also often provide counseling services to victims at this time.

How an investigation takes place, however, is entirely up to the individual university. The only requirement of Title IX is that each school is required to have a Title IX coordinator, who facilitates investigations.

What many schools do is an administrative investigation, which is conducted by members of the college faculty and staff who have gone through Title IX training.

Hope College has such investigations, which its officials call the “equal resolution process pool.” Hope’s president, in consultation with the Title IX coordinator, appoints the pool from staff and faculty members. The pool reports to the Title IX coordinator, and the pool members receive annual training organized by the coordinator.

At GVSU, these administrative investigations are conducted by a panel of trained investigators. Should a faculty member have an affiliation with the victim or alleged perpetrator, another investigator can take his or her place.

These investigators gather information and conduct interviews, completing a non-criminal investigation. The trained faculty and staff are not able to press any sort of criminal charges. Rather, their goal is to determine if a student has violated the student code of conduct.

Following the conclusion of the Title IX investigation, if a student is found to be in violation of university policies, the entire investigation is then turned over to the school’s dean of students office or other entity that regulates student behavior.

At some universities, like at Hope and GVSU, both the alleged victim and perpetrator can appeal the decision. At some universities, both parties may also have an adviser during meetings and interviews.

As with nearly everything else in the Title IX investigative process, the rights of both parties during the investigation can greatly vary from school to school.

Consequences

Deciding how to reprimand students who have committed acts of sexual misconduct must be decided on a case-by-case basis, Dorer said.

“In all my years of doing this, every case is gray,” Dorer said. “It depends on several factors: Has this person shown any regret or remorse? Do they have a history? Are they taking ownership for it? Were there outside factors, like the person had some misinterpretation of communication or lack of knowledge? Mental health could be involved. We review each individual case based on all factors and we train people on those spectrums.”

Reprimands are dependant on the seriousness of the crime. What further complicates the issue is that, at many universities, the Title IX office does not directly handle the consequences for students found to be in violation of the sexual misconduct policies.

At Grand Valley State University, that responsibility is handed off to the Dean of Students Office. A student found to be in violation of the school’s sexual misconduct policy can be sanctioned based on the severity of the student’s violation.

Sanctions against students can include anything from a written reprimand, required community service, loss of course credit, removal from university housing, suspension or dismissal from GVSU. Hope College has similar sanctions.

Dorer said a situation that involved unwanted kissing and fondling over the clothes, for example, would be “not awesome, but not a high-level case” and would probably result in a written sanction, or possibly probation.

“We would never give written reprimand for rape,” she said. “That’s a high-level case when you’re talking about non-consensual penetration, and that’s nothing less than suspension or expulsion.”

Typically, colleges keep records of a student’s sanctions for seven years after a student has graduated. A record of a suspension or an expulsion will be kept on file permanently.

Is the process working?

Local policies have been in place for years — even before the changes under the Obama administration — and are remaining unchanged in light of DeVos’ changes thus far — at least for the time being because schools have the option to change their threshold of evidentiary proof to determine guilt.

The Department of Education’s interim guidance allows universities to modify the standard of evidence in campus sexual assault cases. Schools can now go from using preponderance of evidence (the lowest threshold) to a clear and convincing standard (the mid-level threshold) if they so choose. The highest level of proof is the beyond a reasonable doubt standard, which courtrooms use.

Are these policies working? Veidlinger, who has personally investigated hundreds of sexual misconduct investigations, says the answer to that question is nuanced and complex.

“Some (schools) have very well trained people handling this, or some have very poor handling of these matters,” she said. “When we look at how it works, we need to take into account other aspects of the schools’ systems.

“It’s not an accurate description of the picture unless you look at all of that together.”

Preponderance of the evidence has been a controversial standard, with some saying it does not allow alleged perpetrators due process in university investigations. Veidlinger said it could be a “very fair standard” if other parts of the system are working well.

The use of the standard alone doesn’t yield fair answers, she said. That’s why it’s used in conjunction with other policies from student codes of conduct, such as the definition of consent and the process by which it investigates.

Universities can provide other mechanisms for investigations in their interpretations of the law — a hearing panel, resources for victims or other safeguards.

As with much of Title IX, however, all of that is left up to interpretation.

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